November 04, 2020

A former Wells Fargo employee who had her proposed class action accusing the bank of mismanaging its $40 billion retirement plan booted from California to Minnesota asked the Ninth Circuit to rule that employers can't dictate where workers file ERISA suits.

In a Monday filing supporting her September petition for a writ of mandamus, Yvonne Becker said Congress intended to give plaintiffs three venue options for lawsuits if they felt their rights were violated under the Employee Retirement Income Security Act of 1974: where the "plan is administered," where the defendant is located and where the alleged violation took place.

By using a forum selection clause in its plan, Wells Fargo unlawfully cut out two of those options, she said.

"The Petition explained that, to ensure ERISA participants 'ready access to the Federal courts,' ERISA's liberal venue provision authorizes them to sue in any of three places," she said in Monday's filing. "By countermanding that statutory authorization and preventing participants from suing in two of those places, Defendants' forum-selection clause violates ERISA's text and defies its expressly stated purpose."

Becker has asked the appeals court to grant a writ of mandamus vacating a California district judge's transfer of her case to Minnesota federal court, the state where the 401(k) plan administrator is based, according to the order. If the Ninth Circuit rules in her favor, it would be the first such ruling from a federal appeals court, one of Becker's attorneys said Wednesday.

In her March 2020 proposed class action, Becker argued that Wells Fargo mismanaged its $40 billion 401(k) plan by steering more than $5 billion of its workers' retirement savings into funds that have cost them $100 million in losses.

In her suit, Becker said she lives in California and that Wells Fargo is headquartered there. The venue options in the law "ensure and protect judicial access" for workers, she said in her petition.

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Becker is represented on appeal by Peter K. Stris, Douglas D. Geyser and John Stokes of Stris & Maher LLP,  Michelle C. Yau, Mary J. Bortscheller, Daniel R. Sutter and Jamie L. Bowers of Cohen Milstein Sellers & Toll PLLC and Todd Jackson and Nina Wasow of Feinberg Jackson Worthman & Wasow LLP.

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